The Kamehameha Schools were established before the U.S. annexed Hawai‘i,
under the will of Princess Bernice Pauahi Bishop, the last direct descendant
of King Kamehameha I. She created the trust to uplift Native Hawaiian
children through education because the forces of Westernization had
nearly decimated the Hawaiian people.

The majority decision, authored by Judge Susan Graber, said, “Congress
intended that a preference for Native Hawaiians, in Hawaii, by a Native
Hawaiian organization, located on the Hawaiian monarchy’s ancestral
lands, be upheld because it furthers the urgent need for better education
of Native Hawaiians, which Congress has repeatedly identified as necessary.”

It also ruled that: “Because the Schools are a wholly private K-12
educational establishment, whose preferential admissions policy is designed
to counteract the significant, current educational deficits of Native
Hawaiian children in Hawaii, and because in 1991 Congress clearly intended
§ 1981 to exist in harmony with its other legislation providing specially
for the education of Native Hawaiians, we must conclude that the admissions
policy is valid under 42 U.S.C. § 1981.”

In a concurring opinion, in which four other judges joined, Judge William
Fletcher fully agreed with the result, but suggested an alternative
analysis. He concluded that “Congress has invariably treated ‘Native
Hawaiian’ as a political classification [rather than merely a racial
one] for purposes of providing exclusive educational and other benefits.
Under the special relationship doctrine, Congress has the power to do
so. I see nothing in § 1981 to indicate that Congress intended to impose
upon private institutions a more restrictive standard for the provision
of benefits to Native Hawaiians than it has imposed upon itself.”

For additional information, and/or to read the full opinion, please
go to: www.ksbe.edu.